Volume 27

27 Fla. L. Weekly Supp. 892b

Online Reference: FLWSUPP 2710TROGInsurance — Personal injury protection — Coverage — Medical expenses — Affirmative defenses — Withdrawal of claim — Agreement whereby medical provider withdrew PIP claim based on prescription created by physician who was under investigation by insurer was not enforceable — Where insurer intended agreement to invalidate all past and present claims based on physician’s prescriptions and to require return of monies paid on past claims, but provider was under impression that signing agreement would resolve all issues with insurer, there was no meeting of minds — Even if there were meeting of minds, there was no consideration exchanged for withdrawal of claim, inasmuch as insurer did not give or concede anything regarding pursuit of alleged prescription issues in exchange for provider’s forbearance from pursuing claim — Alternatively, insurer breached any agreement to stop investigating physician and provider when it reported physician to Department of Health and cannot thereafter ask court to enforce agreement against provider

27 Fla. L. Weekly Supp. 892b

Online Reference: FLWSUPP 2710TROGInsurance — Personal injury protection — Coverage — Medical expenses — Affirmative defenses — Withdrawal of claim — Agreement whereby medical provider withdrew PIP claim based on prescription created by physician who was under investigation by insurer was not enforceable — Where insurer intended agreement to invalidate all past and present claims based on physician’s prescriptions and to require return of monies paid on past claims, but provider was under impression that signing agreement would resolve all issues with insurer, there was no meeting of minds — Even if there were meeting of minds, there was no consideration exchanged for withdrawal of claim, inasmuch as insurer did not give or concede anything regarding pursuit of alleged prescription issues in exchange for provider’s forbearance from pursuing claim — Alternatively, insurer breached any agreement to stop investigating physician and provider when it reported physician to Department of Health and cannot thereafter ask court to enforce agreement against provider

27 Fla. L. Weekly Supp. 295a

Online Reference: FLWSUPP 2703MARLInsurance — Personal injury protection — Coverage — Medical expenses — Timeliness of claim — Explanation of reimbursement seeking proof of timeliness of billing is not valid request for documentation regarding reasonableness of charges or necessity of treatment under section 627.736(6)(b) — Even if EOR was valid request for documentation, request sent more than 30 days after receipt of claim is untimely — Medical provider had no obligation to respond to invalid request for documentation — Where provider met burden of proving bills were timely mailed to insurer, provider’s motion for summary judgment as to insurer’s untimely billing defense is granted

27 Fla. L. Weekly Supp. 180a

Online Reference: FLWSUPP 2702ROSAInsurance — Personal injury protection — Affirmative defenses — Failure to comply with recordkeeping standards of administrative rules not lawful basis for nonpayment of PIP benefits — Motion to strike affirmative defense is granted

27 Fla. L. Weekly Supp. 321b

Online Reference: FLWSUPP 2703PHARInsurance — Personal injury protection — Affirmative defenses — Amendment — Insurer’s motion for leave to amend answer and affirmative defenses to raise demand letter defense was untimely where case involves relatively small amount of money, case had been pending for 14 months at time motion was served, and insurer was unable to provide justification for delay — Motion to amend was untimely; amendment to allege that demand letter was defective for failing to demand 100% of charges would be futile since letter does make that demand; and granting motion would prejudice medical provider by introducing new issues into litigation

27 Fla. L. Weekly Supp. 197b

Online Reference: FLWSUPP 2702DOWNInsurance — Personal injury protection — Coverage — Medical expenses — Phrase “allowable amount under the applicable schedule of Medicare Part B for 2007,” as used in PIP statute, refers only to Medicare’s participating physicians fee schedule, not to limiting charge

27 Fla. L. Weekly Supp. 209a

Online Reference: FLWSUPP 2702BARTInsurance — Personal injury protection — Coverage — Medical expenses — Amount — Medicare fee schedule — Insurer cannot cap its payment of medical service by using workers’ compensation fee schedule where, although allowable amount for service requires a determination on an individualized basis by Medicare contractor, the service at issue is reimbursable under Medicare Part B — If insurer cannot determine an amount to be paid under Medicare Part B, then the statutory default mechanism is to resort to a “reasonableness” determination — Question certified: When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 200 percent of the workers’ compensation fee schedule?

27 Fla. L. Weekly Supp. 558b

Online Reference: FLWSUPP 2706ASSOInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer initially denied coverage for bills submitted by all medical providers based on alleged material misrepresentation, insurer abandoned material misrepresentation defense after plaintiff filed suit to recover PIP benefits, and insurer subsequently exhausted PIP benefits through payments to providers other than plaintiff, summary disposition is entered in favor of insurer — Plaintiff’s claim that insurer paid other providers’ claims in excess of amount required by Medicare fee schedule does not create triable issue where there were $5,000 in additional unpaid claims that would be paid before plaintiff’s bill was reached

27 Fla. L. Weekly Supp. 418a

Online Reference: FLWSUPP 2704CWILInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Where insured failed to attend properly noticed EUO, insured failed to satisfy condition precedent to coverage and medical provider is not entitled to PIP benefits — Insurer did not waive right to notice EUO by scheduling EUO more than 30 days after receipt of provider’s bills

27 Fla. L. Weekly Supp. 759a

Online Reference: FLWSUPP 2708BELMInsurance — Personal injury protection — Complaint — Amendment — Motion to amend complaint following confession of judgment for full jurisdictional amount alleged in original complaint is denied, and motion to enforce confession of judgment is granted — Confession of judgment divested court of jurisdiction and allowing amendment would prejudice insurer